Once the state takes up the practice of killing and being killed, reason is not much of a guide to action, and law is not the boundary of political meaning. If the state performs its meaning through acts of sacrificial violence, it should not surprise us that it continues to fall into the pattern of “mistakes.”

What seems counterproductive may be working in a different register of meaning. If the state is not trying to be reasonable in its pursuit of death over life, then we can understand why preaching reasonable reform rarely has much effect on state practices.

The response to an enemy willing to engage in his own acts of sacrifice is to humiliate, for humiliation is intended to break the sacrificial practices of the other. Mere violence is not a threat to the martyr; rather, it is an opportunity to realize meaning.

One wins in a sacrificial conflict only by moving the enemy from an experience of martyrdom to one of humiliation. A nation or people that experiences violence only as martyrdom and not as humiliation cannot be defeated, even if victory will take decades. This was the lesson the West should have learned from the wars of decolonization.

Stephen Holmes writes in praise of the rule of law, drawing our attention to the institutional wisdom embodied in our traditions of constitutional governance. Since these arguments all seem so reasonable, I always come back to the question: why does our government continue to act in ways that are so unreasonable? The answer, I will argue, is because reason is not the only measure of political action.

HOW RATIONAL ARE WE?

The fundamental assumption behind Holmes’s analysis appears immediately in the example of his daughter, Alexa, in the hospital. The example works on the assumption that the ends of the state and the hospital are the same: to replace danger with security. For Holmes, saving his daughter’s life is paradigmatic not just of rule-governed behavior, but of the appropriate end for the state. The story is straight out of liberal political theory.

Without rules, all of life would be a succession of accidents, for there could be no rational planning. The state tames nature and saves lives by enacting and following rules. In the hospital, these rules are protocols of treatment; in the state, these rules are laws.

Rules represent the presence of reason; adherence to the rules represents the commitment to reason over nature. Holmes wants us to see that deviation from the rules is irrational, since the consequence will likely be a return to a state of nature.

Hospital and state are two loci of a common project: to advance individual well-being. Thus, both hospital and state pursue a modern project of eliminating pain through the application of reason. Our paths divide at just this point, for I do not assume that the end of the state is to advance individual well-being.

I do not say that the state is indifferent to well-being, but that this is neither the sole, nor the most important, end for the state. If we were to look, without any theoretical presuppositions, at the histories of modern nation-states—including our own—I do not think we could say that the state is pursuing the same end as the hospital.

Regardless of its position on health care, the state is also an institution willing to deploy violence, death, and destruction. Our national narrative is organized around killing and being killed, at least as much as it is around the lowering of mortality rates or increasing gross domestic product. The federal government spends about as much on violent destruction as it does on health care.

Surely it has been a good deal easier to appropriate funds for the war in Iraq than it has been to extend health care to everyone. This is so even though everyone knows that we could have saved more lives by investing in health care the money that we instead spent in Iraq.

So what are we doing? Are we making “mistakes” or are we doing something else? If acts of violence are not merely the result of a failure of reason, Holmes may be applying the wrong measure. Liberal theory tells us that the state’s interest is in advancing individual well-being—as if this end is the only common denominator upon which all can agree. If one takes this point of view, then one inevitably ends up arguing that the state often acts against its own end.

I approach politics as a set of practices sustained by beliefs. To use a term coined by Clifford Geertz, the state is a “web” of meanings. Its primary end is to sustain the world that those meanings constitute. The political is not an exercise in means-ends rationality, serving some extra-political end. Rather, it is a structure of the imagination that makes sense of experience by embedding it in narratives. To trace the web of meanings is to construct a narrative, failure of law, but must take up the question of how violence creates political meaning.

Too often, we succumb to a temptation to think that the violence of the state is merely aberrational or a burden imposed upon us by others—as if we really want to be something other than what we are. In a law school, we think that all state behavior should be measured by law, and that the object of law is security, not violence. But why do we think that? Are we confusing the state—the actual, not the theoretical state—with the hospital, which should indeed operate along the single normative metric of lives saved?

In the United States, the phenomenon of sacrifice remains at the very heart of political meaning. After 9/11, we chose war over law not because we judged it more efficient, but because we imagined a world populated by enemies, not criminals. Other states responded differently, not because they had different information—and not because they were more rational—but because they imagined the world differently.

In short, the state may not be pursuing the ends that Holmes assumes it to be pursuing. The economy of violence, of killing and being killed, may be one of waste and inefficiency from the perspective of our normal economy. Our ends may be mythical, not practical, as Holmes himself has recognized.

Speaking of national security may be just a polite way of speaking of the realization of meaning through the performance of violence. It may be the performance itself—not some goal outside of the violence—that is of most significance to us.

Holmes’s account of psychological pathology blends easily into a partisan political narrative. Those in power failed, we are to believe, because they were not pure of heart. In America, to be pure of heart is to listen to the voice of reason, for our politics is surely to be understood as an Enlightenment project.

We fight our partisan battles through the rhetoric of public interest. The positions we oppose are always held by “special interests” or, to use the classical term, “factions.” The party in power has failed to rise above personal circumstance; we, in the opposition, promise to reconstruct policy on the basis of reason alone. Accordingly, Holmes offers a platform of reasonable reform. Because he speaks in the language of reason, he can claim to speak for the common good.

Holmes pursues this ideal of a politics of reason down the predictable lines of American centrism. Reason will cure psychological temptation, whether grounded in individual failure of character or partisan ambition. The form of that cure will be procedural, and procedure is embodied in the institutions of legality. Not war, but law.

This deep belief in the intersection of reason and law is supported, in the American case, not just with the appeal to theory, but also by citing the founding fathers, who represent that miraculous moment at which reason and will were one.

All of this is an admirable demonstration of conviction on the part of Holmes: the conviction that the ends of the political community are to advance individual well-being, to secure a just order between individuals and the state, and to advance justice among states. Here, I choose my words carefully: this is all a matter of faith.

The term we often use for this faith is “the rule of law.” I am not at all sure, however, that, standing alone, this describes the political faith of the American citizenry. I am quite sure that it fails as an adequate description of our political practices and beliefs.

Once the state takes up the practice of killing and being killed, reason is not much of a guide to action, and law is not the boundary of political meaning. If the state performs its meaning through acts of sacrificial violence, it should not surprise us that it continues to fall into the pattern of “mistakes” that Holmes identifies.

What seems irrational and counterproductive may be working in a different register of meaning. Politics in this broad sense is not a technical enterprise; it is not like a hospital. It is more like love: its end is to bring forth and sustain meaning in the world, and it is not necessarily moved by the claims of reason. To act counter to reason—that is, beyond the boundaries of reason—can be a measure of love.

If the state is not trying to be reasonable in its pursuit of death over life, then we can understand why preaching reasonable reform rarely has much effect on state practices. The sources of meaning at stake do not hold themselves accountable to reason. Affirming a lack of such accountability may be perfectly irrational but nevertheless wholly meaningful.

This is the starting point of religious faith for many: one does not test faith by reason. Setting ourselves the task of theoretical understanding, we may miss the phenomenon of political belief. People do not reason themselves to faith, whether in God or nation. They find themselves already entangled in a web of meanings.

THE ENDS OF THE POLITICAL

Of course, the liberal state does protect life, property, and well-being. Consider this the moment of law. But, in a crisis, this same state takes life, destroys property, and causes massive injury. Consider this the moment of sacrifice. The state reserves the right to claim every life and to consume all material wealth—public and private.

This is exactly the meaning of the total wars of the twentieth century—wars that systematically ignored the distinction of combatants from non-combatants. The distinction failed again in the wars of decolonization, and was completely abandoned in the Cold War threats of mutual assured destruction. Unsurprisingly, it is failing once more in the war on terror.

Popular sovereignty expresses itself one way in the rule of law: democratic procedures of law-making are intended to ground the legitimacy of positive law. Popular sovereignty expresses itself another way in the democratization of sacrifice. The modern democratic state did not just extend the franchise universally, it extended the imaginative possibility of sacrifice.

We need to understand our political culture as maintaining a commitment to both individual welfare through law and to sovereignty through sacrifice. We should resist claims of priority: each sees the whole from its own point of view. Each can displace the other, but is subject to displacement in turn.

What we find when we trace the web of meanings constitutive of the political imagination is not theoretical coherence in support of individual wellbeing. We find no priority given to reason; we do not even find a commitment to the principle of non-contradiction. We find that waste can be as meaningful as efficiency, that violence can be more important than security, that acting outside of the law can be as much a source of meaning as staying within law, and that humiliation competes with dignity as a norm of political behavior. We find, if we are honest, that we have the same capacities for killing, injuring, and humiliating that we see in the enemy.

Forget, for the moment, the aspiration for individual accountability under legal norms. Think instead of the actual practices of Western politics over the last two centuries. Over and over, political identity has been a ground of life or death: one died because one was German, French, or American.

One killed for the same reason. For the most part, those who killed and those who died were both morally innocent. As individuals, neither had offended the other. In the American Civil War, relatives and friends found themselves engaged in political acts of killing and being killed. They killed and died even as they remained friends.

CONCLUSION: PHILOSOPHY AND 9/11

The practices of killing and being killed for the state must be explained. They should be at the center of any philosophical account of our political experience. This is just the imaginative construction within which the 9/11 attack was framed.

The response to an enemy willing to engage in his own acts of sacrifice is to humiliate, for humiliation is intended to break the sacrificial practices of the other. Mere violence is not a threat to the martyr; rather, it is an opportunity to realize meaning. One wins in a sacrificial conflict only by moving the enemy from an experience of martyrdom to one of humiliation. A nation or people that experiences violence only as martyrdom and not as humiliation cannot be defeated, even if victory will take decades. This was the lesson the West should have learned from the wars of decolonization.

The experience of the failure of sacrifice is exactly the experience of humiliation. It is to admit defeat, to confess that one no longer believes. The practice of humiliation is the practice of torture, whether it meets the legal standard or not.